Longmont defends fracking ban, asks judge to hear case

Ban can't conflict with non-existent state rules, city argues

The state has never regulated "fracking" and the oil and gas industry has alternatives, Longmont attorneys argued in a brief late Friday defending its ban of hydraulic fracturing.

The brief asks the Boulder County District Court to not summarily kill the ban, but to let it go on to an evidentiary hearing in April. The Colorado Oil and Gas Association, which sued Longmont over the ban in 2012, asked for a summary judgment in March.

Longmont residents voted in 2012 to ban fracking, which uses high pressure fluid to break open hard-to-reach oil and gas deposits. The ban, which was adopted into the city charter, also forbids the storage of fracking wastes in city limits.

COGA has maintained that the ban is tantamount to a ban on drilling — forbidden in 1992 by a Colorado Supreme Court decision — and that only the state can regulate the methods used.

But the state hasn't done that in this case, argued city attorney Eugene Mei, assistant city attorney Dan Kramer and special counsel Phillip Barber. Hydraulic fracturing was never written into the state law that empowered the COGCC, they wrote, and the COGCC's own rules merely call for operators to give a 48-hour warning of a frack and report any chemicals used.

"(T)he COGCC's rules amount to non-regulation of hydraulic fracturing," the city's lawyers wrote. "The COGCC does not issue permits for it. The drilling permit from the COGCC does not 'tell the operator yes, you are allowed to hydraulically fracture, or, no, you're not allowed'; it's up to the operator to make that decision."

By contrast, they noted, there are COGCC rules that regulate several other aspects of drilling, down to locating signs and cleaning up trash.

"The absence of any comparable rules for fracking speaks volumes," the attorneys wrote. There can't be an "operational conflict" between state and local law, they argued, if there are no state regulations to conflict with.

"The COGCC. . . has abdicated its oversight responsibility to the oil companies," the brief said.

The brief also argues that fracking presents health hazards to humans and animals; risks of spills, air pollution and earthquakes; increased traffic; and the need for local fire departments to get additional equipment and training for well fires.

The local interests involved are huge, the brief stated, and the ban affects only a "minuscule" portion of the oil and gas to be had in Colorado.

"For that small patch of land," Mei, Kramer and Barber wrote, "the citizens of Longmont are achieving the state interest better than the state itself: to allow production while protecting human health, safety and the environment."

The first test of the ban came in 2013 when Synergy gained permits for 23 wells in Firestone's Union annexation near the Longmont city limits. The company drilled the wells but chose not to frack the areas that passed beneath Longmont's bounds rather than get into a legal battle of its own.

Far from being damaged, Longmont's attorneys argued, Synergy's profits had gone up 89 percent in the last year.

The brief lists wells in the Wattenberg Field — the large oil and gas field that Longmont is on the edge of — that were completed without fracking. It also mentions an alternative method called "underbalanced drilling" or UBD that uses the natural pressure of the well to bring up oil and gas without the need to frack.

"Economic wells have been drilled without hydraulic fracturing, including wells drilled with the UBD technique," Longmont's attorneys wrote. "Likewise, there are many wells that have been completed using hydraulic fracturing that become uneconomic in a few months. Thus, hydraulic fracturing is not the only completion technology which would result in a producing or economic well."

COGA's request for summary judgment has been echoed by the Colorado Oil and Gas Conservation Commission — the state regulating body for the industry — and the drilling company TOP Operating.

The COGCC has a separate lawsuit with Longmont over drilling regulations the city adopted in 2012, including a restriction against drilling in residential zones. Those rules did not include a fracking ban. The case was originally set to be heard this fall, but was postponed so that the suit against the fracking ban could be heard first.

The case is being heard before Judge D.D. Mallard.

Summary judgments can be granted if there are no factual issues that would require a trial, and if it can be shown that one side or the other clearly has the law on their side.

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